thomas williams and sanford kelsey v. kelly eugene tharp ...2008/07/11 · jeffrey d. hawkins...
TRANSCRIPT
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES: AREND J. ABEL Attorneys for Kelly Eugene Tharp: KELLEY J. JOHNSON JULIA BLACKWELL GELINAS Cohen & Malad, LLP JOHN M. T. CHAVIS, II Indianapolis, Indiana LUCY R. DOLLENS Locke Reynolds LLP Indianapolis, Indiana Attorneys for Papa John’s U.S.A.,Inc.: ERIC D. JOHNSON JEFFREY D. HAWKINS Kightlinger & Gray, L.L.P. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
THOMAS WILLIAMS and ) SANFORD KELSEY, )
) Appellants-Plaintiffs, )
) vs. ) No. 29A02-0707-CV-625
) KELLY EUGENE THARP and ) PAPA JOHN’S U.S.A., INC., )
) Appellees-Defendants. )
APPEAL FROM THE HAMILTON CIRCUIT COURT The Honorable Judith S. Proffitt, Judge
Cause No. 29C01-0510-CT-1146
July 11, 2008
OPINION – FOR PUBLICATION
MAY, Judge
2
Two African-American men, Thomas Williams and Sanford Kelsey, went to a
Papa John’s restaurant in Westfield to pick up a pizza they had ordered. They paid for
the pizza and left for Williams’ home. An employee falsely reported one of the men
pulled a gun. A number of police officers surrounded their vehicle when the two returned
home with the pizza. Police detained the men, in handcuffs and on their knees, for an
hour and a half while they investigated.
Williams and Kelsey sued Papa John’s and its employee for defamation, false
imprisonment, negligence, and intentional infliction of emotional distress. The trial court
granted summary judgment for Papa John’s and its employee on the ground the
complaint included no defamatory statement; it also found the employee’s statement was
privileged even if defamatory and the employee did not act intentionally or in an extreme
and outrageous manner.1
We reverse and remand for trial.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to Williams and Kelsey, as the non-moving parties on
summary judgment, are that in February 2005, Kelsey came to Indianapolis for a job
interview with a law firm. He stayed with his childhood friend Williams and Williams’
family. The two ordered a pizza from Papa John’s Westfield and went to pick it up.
They paid for the pizza with Williams’ credit card and left.
1 We heard oral argument April 8, 2008, at the Indiana University School of Law – Indianapolis. We thank the School for its hospitality and commend counsel for the quality of their advocacy.
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A Papa John’s delivery driver, Kelly Tharp, went outside the store and told a
passerby “we need to watch that guy because I think he had a gun. He pulled out a gun
and he stuck it back in when he thought – when he saw me looking at him.” (App. at
187.) The passerby called the police. Tharp went back into the store and told a fellow
employee Kelsey had a gun and Tharp had called police. The other employee had seen
no gun, and he saw Williams pay for the pizza with a credit card.
Westfield police officer Jeff Frolick arrived, and Tharp told him two black males
came into the restaurant and one pulled out a gun. Tharp described Williams and
Kelsey’s car and gave Officer Frolick the license plate number. Tharp falsely identified
himself to Officer Frolick as “Arthur Tharp.”
Officer Frolick told Tharp to stay by the police car while he interviewed other
employees, but Tharp left and did not return to work at Papa John’s. None of the other
employees saw a gun. In his investigation at the Papa John’s store, Officer Frolick went
behind the counter to stand where Tharp said he was standing when he saw Kelsey pull
the gun. Officer Frolick determined someone standing in that location could not see a
customer’s waist and that Tharp, who was shorter than Officer Frolick, could not have
seen what he claimed to see.
An unmarked police car was waiting when Williams and Kelsey arrived at
Williams’ home, and a number of additional police cars soon arrived and surrounded
their vehicle. Police ordered the men out of their car at gunpoint, ordered them to their
knees, and handcuffed them. Williams and Kelsey were detained for an hour and a half
4
while their family members and neighbors watched and police investigated. The police
searched Williams and Kelsey and found no gun.
Tharp had worked for Papa John’s at other locations twice before this incident.
The first time he was terminated for theft. The second time he was hired using a
fraudulent name. That job ended when he was incarcerated. When hired at the Westfield
Papa John’s he used his father’s name, social security number, and driver’s license
number.
DISCUSSION AND DECISION
The standard for reviewing a summary judgment is the same as that used in the
trial court: summary judgment is appropriate only where the evidence shows there is no
genuine issue of material fact and the moving party is entitled to a judgment as a matter
of law. Row v. Holt, 864 N.E.2d 1011, 1013 (Ind. 2007). All inferences are to be drawn
in favor of the non-moving parties, here Williams and Kelsey. Id.
1. Adequacy of Allegation of Defamatory Statement
The trial court granted summary judgment, apparently on the sole ground
Williams and Kelsey did not adequately allege a defamatory statement.2 Their allegation
of a defamatory statement was adequate.
[E]ven under notice pleading, a plaintiff must still set out the operative facts of the claim. Indeed, hornbook law stresses the necessity of including the alleged defamatory statement in the complaint. There is sound reason for this policy, as the absence of a statement in the complaint works a
2 After granting summary judgment on that ground, the court stated it “will address the additional arguments of the parties under [the defamation count].” (App. at 136.) To provide guidance to the trial court on remand, we will also address those arguments.
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detriment on both the court and the defendant. The court is handicapped without the statement since, without it, the court cannot actually determine if the statement is legally defamatory. The defendant is placed on an unfair footing since the absence of the statement denies her the opportunity to prepare appropriate defenses.
Trail v. Boys and Girls Clubs of N.W. Ind., 845 N.E.2d 130, 136-37 (Ind. 2006) (citations
omitted).
The trial court noted a statement in the complaint that Tharp “falsely reported
[Williams and Kelsey] brandished a gun and took money from the cash register,” but
found it “undisputed that this statement was not made by Tharp or any employee of Papa
John’s.” (App. at 136.) It accordingly found summary judgment for Tharp and Papa
John’s should be granted under Count I, defamation per se.
But immediately after stating that conclusion, the court appeared to reach an
opposite conclusion. It noted “pulling a gun without any further activity does not subject
one to criminal liability,” but a defamatory statement need not “fully describe the crime,
only leave the impression of criminal acts in one’s mind.” (Id.) It then said the statement
Williams and Kelsey had pulled a gun “leaves the impression in one’s mind that the
Plaintiffs were committing the criminal activity of armed robbery.” (Id.)
We agree. The allegation that Tharp falsely reported Williams and Kelsey
“brandished” a gun was sufficiently specific to satisfy the notice pleading requirements
and any special rules for defamation cases, and their complaint was not rendered
insufficient because it incorrectly alleged Tharp said they took money.
Pleadings may be amended at any time to conform to the evidence presented at
trial, and the purpose of that rule is to “promote relief for a party based upon the evidence
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actually forthcoming at trial, notwithstanding the initial direction set by the pleadings.”
Ayr-Way Stores, Inc. v. Chitwood, 261 Ind. 86, 90, 300 N.E.2d 335, 338 (1973). If Papa
John’s felt it was unable to defend itself because the allegations were incorrect or not
sufficiently specific, it could have moved to dismiss or for a more definite statement, and
Williams and Kelsey could have amended the pleadings. Instead, the trial court granted
summary judgment, depriving them of their opportunity to amend.
An allegedly defamatory communication “is to be viewed in context and given its
plain and natural meaning, according to the idea it is calculated to convey and the persons
to whom it is addressed.” Davidson v. Perron, 716 N.E.2d 29, 37 (Ind. Ct. App. 1999),
trans. denied 735 N.E.2d 224 (Ind. 2000). The allegation Tharp reported Williams and
Kelsey “pulled a gun” presented factual issues for trial because, as the trial court
correctly noted, it imputed criminal activity to Williams and Kelsey. Summary judgment
based on the inadequacy of the allegation in Williams and Kelsey’s complaint was
therefore improper.
2. Abuse of Qualified Privilege
The trial court appears to have determined that even if Tharp’s statement was
defamatory, it was privileged.3 To the extent the summary judgment was premised on a
3 The court first found there was no defamation because Tharp’s allegedly defamatory statement was not included in the complaint. But it then stated the allegation Williams and Kelsey pulled a gun while inside the Papa John’s restaurant “leaves the impression in one’s mind that [Williams and Kelsey] were committing the criminal activity of armed robbery. . . . However, even if there is a defamatory statement there is no liability if the statement is covered by a privilege.” (App. at 136-37) (citation omitted). It then granted summary judgment “independent of the findings above” (presumably, that there was no defamatory statement). (Id. at 138.)
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privilege, it was improper, as there is a genuine issue of fact as to whether the privilege
applied to Tharp’s statement.4
A qualified privilege protects “communications made in good faith on any subject
matter in which the party making the communication has an interest or in reference to
which he has a duty, either public or private, either legal, moral, or social, if made to a
person having a corresponding interest or duty.” Holcomb v. Walter’s Dimmick
Petroleum, Inc., 858 N.E.2d 103, 106 (Ind. 2006) (quoting Bals v. Verduzco, 600 N.E.2d
1353, 1356 (Ind. 1992)). To promote society’s interest in having crimes reported,
communications to law enforcement are protected by this qualified privilege. Id.
Nevertheless, such a communication can lose its privileged status if the privilege
is abused. Id. Abuse of the privilege is proven by showing (1) the communicator was
primarily motivated by ill will in making the statement; (2) there was excessive
publication of the defamatory statements; or (3) the statement was made without belief or
grounds for belief in its truth. Id.
As the phrase “qualified or conditional privilege” suggests, such privilege does not change the actionable quality of the words published, but merely rebuts the inference of malice that is imputed in the absence of privilege. In an appropriate case, a trier of fact may determine the privilege was abused by excessive publication, by use of the occasion for an improper purpose, or by lack of belief or grounds for belief in the truth of what is said. And although the term “malice” is frequently applied in viewing such acts, it appears “the essence of the concept is not the speaker’s spite but his abuse
4 The trial court also granted summary judgment on Williams and Kelsey’s negligence count on the ground Tharp’s statements were protected by the qualified privilege. After briefing was completed Williams and Kelsey submitted additional authority on the privilege issue. Tharp moved for leave to respond. We accept Williams and Kelsey’s additional authority and Tharp’s response.
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of the privileged occasion by going beyond the scope of the purposes for which privilege exists.”
Id. at 106-07 (quoting Elliott v. Roach, 409 N.E.2d 661, 673 (Ind. Ct. App. 1980)).
Making statements “without belief or grounds for belief” has been equated to
reckless disregard for the truth or falsity of a statement. May v. Frauhiger, 716 N.E.2d
591, 595 (Ind. Ct. App. 1999). Once a defendant proves a qualified privilege exists for
his statements, the plaintiff has the burden of proving that the privilege has been abused.
Id. If the plaintiff raises sufficient evidence of abuse of privilege, and if different
inferences and conclusions reasonably may be drawn from the evidence, then the
question of abuse of privilege should be submitted to the jury. Id.
In Holcomb, a gas station attendant told police a customer operating a green Jeep
with license plate number 680670L had driven off without paying for his gasoline.
Holcomb, who owned a green Jeep with that license plate number, was arrested and
charged with the reported gasoline theft. Holcomb claimed the attendant abused the
privilege because her statement to the police was made without belief or grounds for
belief in its truth. Our Supreme Court found the privilege was not abused because the
attendant did nothing more than detail her version of the facts to a policeman and ask for
his assistance, leaving it to the officer to determine the appropriate response:
A person who does no more than this does not abuse the privilege . . . . [S]uch behavior does not go beyond the scope of the purposes for which privilege exists, one of those purposes being enhanced public safety by facilitating the investigation of suspected criminal activity. To hold otherwise would make persons who suspect criminal activity reluctant to provide specific (or even speculative) information to law enforcement because of the risk of exposing themselves to civil liability.
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Id. at 108 (citations and footnote omitted). Holcomb presented no evidence the clerk
made the statement “without belief or grounds for belief” it was true; all he offered was
that he was wrongly identified. Id.
In the case before us, by contrast, Williams and Kelsey offered ample evidence
that gives rise to a genuine issue of fact as to whether Tharp acted with reckless disregard
for the truth or was honestly mistaken. Officer Frolick testified he stood where Tharp
said he was standing when he saw Kelsey pull a gun from his waistband. From that
location, the officer testified, he could not see a customer’s waist. Officer Frolick noted
Tharp “was considerably shorter than I am, so he could not have seen what he told me he
saw.” (App. at 196.) No other Papa John’s employee, including the clerk who assisted
Williams and Kelsey, saw either pull out a gun. Tharp gave police a false name and had
a record of crimes of dishonesty. He gave two different descriptions of the gun. These
facts preclude summary judgment because they give rise to a genuine issue of fact as to
whether Tharp made his accusations without belief or grounds for belief in their truth.
3. False Imprisonment
An action for false imprisonment may arise when one knowingly gives false
information to a law enforcement officer and that false information leads to another
person’s arrest. Allen v. Bethlehem Steel Corp. 547 A.2d 1105, 1109 (Md. Ct. App.
1988), cert. denied sub nom. Green and Vernon Green Assocs. v. Allen, 550 A.2d 1168
(Md. 1988).5 But a person is not liable for false imprisonment when in good faith he
5 Williams and Kelsey offer no authority to the effect this is the rule in Indiana. However, as discussed below, our Supreme Court appears to have recognized this rule, at least implicitly, by addressing at length
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provides information, however mistaken, to law enforcement officers. Id. And see
Holcomb, 858 N.E.2d at 107 (if one directs the attention of an officer to what he supposes
to be a breach of the peace, and does nothing more than communicate the facts to the
officer, he is not liable for false imprisonment even though the arrest was unlawful).
Summary judgment for Papa John’s and Tharp on the false imprisonment count
was improperly premised on the qualified privilege. In Wehrman v. Liberty Petroleum
Co., 382 S.W.2d 56, 61 (Mo. Ct. App. 1964), the court discussed a situation similar to the
one before us, where a citizen-informant reports a crime but misstates or omits some
information. “[I]n order to make a submissible case for false arrest it must appear that
the defendant caused or procured the arrest of the plaintiff.” Id. But giving erroneous
information to the police, even though it results in an arrest, cannot be the basis of an
action for false arrest and imprisonment if the informant believed, when he reported the
matter to the police, the information given was correct. “[A] different rule should prevail
where the informant knowingly and deliberately gives the police an incomplete and
biased version of the occurrence which induces them to believe that another is a thief, and
results in the latter’s unwarranted arrest.” Id.
Wehrman bought gasoline from Liberty that had water in it. He had engine
trouble and had the car serviced. He returned to the Liberty station and complained to the
manager, Brown, that the gasoline he had purchased there contained water. Brown said
he knew it had, because he had found water in his own gasoline taken out of the same
a “privilege” exception to it in Holcomb v. Walter’s Dimmick Petroleum, Inc., 858 N.E.2d 103, 107 (Ind. 2006).
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tank. Wehrman told Brown about the expense for the service to his car and Brown said
he would have the company mail Wehrman a check.
Wehrman heard nothing from the company and went back to the station to talk to
Brown. While waiting to talk to Brown, he had an attendant put a small amount of
gasoline and oil into his car. After an argument with Brown, Wehrman was told he
would never get paid, and Brown demanded payment for the gas that had been put in
Wehrman’s car. Wehrman told Brown he could deduct the amount from what the
company owed Wehrman.
Brown called the police when Wehrman drove away. All Brown told police was
that a man came in to the station, made a purchase, refused to pay for it, and drove off.
He gave police information about the car and its license plate number. Police arrested
Wehrman at his home and took him the police station for booking. At the police station,
Brown finally paid Wehrman, and Wehrman was released.
Those facts were sufficient for Wehrman’s false imprisonment claim to go to the
jury:
Had Brown fully reported to the police all of the facts known to him we would have no hesitancy in holding that any arrest which followed could not be said to have been instigated by him. But Brown’s own testimony, as well as that of plaintiff, shows that the information which Brown gave to the police was incomplete, inaccurate, and highly misleading . . . . The jury could find that by knowingly giving the police such incomplete, biased and misleading information Brown instigated plaintiff’s arrest, and the court, therefore, did not err in overruling defendants’ motions for a directed verdict.
Id. at 61-62 (emphasis in original). As explained above, there is ample evidence to give
rise to a genuine issue as to whether Tharp gave the police “incomplete, biased and
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misleading information” that instigated Williams and Kelsey’s arrest. Summary
judgment on the false imprisonment count was therefore error.
4. Intentional Infliction of Emotional Distress (“IIED”)6
“The definition of the tort of [IIED] is that ‘one who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress to another is subject
to liability for such emotional distress . . . .’” Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.
1991) (quoting Restatement (Second) of Torts § 46 (1965)). The intent to harm one
emotionally is the basis for IIED. Id. Intent is a question of fact, and summary judgment
can be reversed where intent is an element. See Cummins v. McIntosh, 845 N.E.2d 1097,
1108 (Ind. Ct. App. 2006) (summary disposition improper when there were factual issues
regarding whether the parties to a release intended to release other tortfeasors), trans.
denied 860 N.E.2d 594 (Ind. 2006). Because there was a genuine issue of fact as to
Tharp’s intent, summary judgment for Papa John’s and Tharp was error.
“Extreme and outrageous conduct in this context is conduct ‘so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and
6 Tharp argues Williams and Kelsey cannot bring an IIED claim because their underlying defamation claim fails. He relies on Rambo v. Cohen, 587 N.E.2d 140, 146 (Ind. Ct. App. 1992) (plaintiff in a defamation action can recover for emotional and physical harm only on a showing of special damages; emotional and physical harms are not special damages unto themselves, but rather are parasitic damages, viable only when attached to normal (i.e., pecuniary) special damages), reh’g denied, trans. denied. We have expressly disavowed the Rambo premise. In Conwell v. Beatty, 667 N.E.2d 768, 776 (Ind. Ct. App. 1996), reh’g denied, defendants argued that to recover for IIED, Conwell had to prove a “host tort.” We held “Because [IIED] is now recognized as an independent tort, and is no longer tied to a rule of damages [the “impact rule”], the claim can stand alone. There is no requirement that the plaintiff prove a host tort.” Id. And see City of Anderson v. Weatherford, 714 N.E.2d 181, 185 (Ind. Ct. App. 1999) (“Indiana now recognizes a separate cause of action for [IIED], without the need for an accompanying tort.”), trans. denied 726 N.E.2d 315 (Ind. 1999).
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to be regarded as atrocious, and utterly intolerable in a civilized community.’” Bradley v.
Hall, 720 N.E.2d 747, 753 (Ind. Ct. App. 1999) (quoting Restatement (Second) of Torts §
46). In the appropriate case, the issue may be decided as a matter of law. Dietz v. Finlay
Fine Jewelry Corp., 754 N.E.2d 958, 970 (Ind. Ct. App. 2001).
Tharp reported Kelsey pulled a gun, but pulling a gun, without more, is not a
crime. He did not say Kelsey pointed the gun or asked for money. Tharp offers
decisions he characterizes as addressing more egregious conduct that did not met that
standard. E.g., id. (accusations of substance abuse, shoplifting, and dishonesty in a “gruff
and intimidating manner” in the context of a detainment for the purpose of determining
the extent of Dietz’s unauthorized conduct was not “outrageous” even if Dietz was
“unreasonably detained and defamed”). However, the conduct did not result in a police
action against Dietz.
Our Indiana decisions appear not to have directly addressed whether filing a false
police report is “extreme and outrageous” conduct for IIED purposes. In Weatherford,
we found Weatherford sufficiently stated a claim for IIED based on allegations police
officers intentionally retaliated against him and abused their power and process when
they violated standard police procedure, disregarded the police chief’s instructions, and
conspired to intentionally and publicly humiliate Weatherford.
Weatherford had filed misconduct charges against the police based on their
behavior when they responded to a complaint about a loud party at his house. On a
second occasion when police went to Weatherford’s house, he “irritated” the officers by
taping their activities and telling his guests they did not need to speak to the police. 714
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N.E.2d at 183. He alleged officers later arrested him when normal procedure would have
been to issue a summons, and they arrested him at a regional high school basketball game
while he was watching his ward compete in the game.
We find instructive decisions from other jurisdictions where allegations a
defendant made a false police report were sufficient to survive summary judgment on an
IIED claim. In Gilman v. Gilman, 736 A.2d 199 (Conn. Super. 1999), Gilman’s former
wife told police he was smoking marijuana at his home. He was at home having dinner
with his girlfriend when police arrived. He claimed as a result of the false and malicious
accusation, the police interrupted his dinner and questioned him before declaring the
complaint was without basis and leaving.
The court found summary judgment improper. It noted summary judgment is
inappropriate for issues involving motive, intent, and subjective feelings and reactions,
id. at 200, and found whether the former wife’s conduct was extreme or outrageous was
an issue for the jury. Id. at 201.
In Adams v. Carlisle, 630 S.E.2d 529, 542 (Ga. Ct. App. 2006), reconsideration
denied, cert. denied, the court reversed summary judgment for the defendant. There, a
cashier thought the plaintiff was using counterfeit bills. She told a security guard, who
did not investigate but instead called police. The guard falsely told a police officer the
plaintiff just walked away after the cashier said she could not accept the bills: “Now
that’s kind of suspicious. I don’t think if I gave somebody 60 bucks in cash I’d just walk
out without saying there’s a problem.” Id. at 541.
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In fact, after the exchange of the bills, the plaintiff gave the cashier her name and
address and did not immediately flee the store, as the security guard suggested. “In our
view, a rational and impartial jury could conclude [the guard] relayed misleading or false
information to the investigating officer, which constituted reckless conduct of an extreme
and outrageous nature and consequently caused [the plaintiff] severe emotional distress.”
Id. at 542.
In light of Gilman and Adams, we decline to hold as a matter of law that the filing
of a false report can never amount to extreme or outrageous conduct.
Tharp next argues there is no evidence he intended to harm Williams and Kelsey,
as Tharp had never met them and “the record lacks any grounds for ill will.” (Tharp Br.
at 27.) Williams and Kelsey find an issue of fact in “the obvious racial aspect of this case
that a Hamilton County jury could properly consider.” (Appellants’ Br. at 14.) In a
letter Tharp sent Papa John’s after the incident, he wrote, “I don’t care what that Black
guy says – he was getting ready to rob the store why else put his hand on his gun & start
to pull it out.” (App. at 199.)
There were genuine issues of fact as to whether Tharp’s conduct was extreme and
outrageous and whether he acted intentionally or recklessly, and summary judgment on
the IIED count was therefore improper.
5. Negligent Hiring
The trial court determined Papa John’s was entitled to summary judgment on
Williams and Kelsey’s negligent hiring count because Tharp committed no tort. Because,
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as explained above, there was a genuine issue of fact as to whether Tharp committed a
variety of torts, summary judgment on that basis was improper.
6. Punitive Damages
Williams and Kelsey sought punitive damages on the ground Tharp’s conduct was
intentional, extreme, and outrageous and such damages should be awarded to deter Tharp
and Papa John’s from such conduct in the future. To establish a claim for punitive
damages, a plaintiff must show “malice, fraud, gross negligence, or oppressiveness
inconsistent with mistake of law or fact, honest error in judgment, overzealousness, mere
negligence, or other noniniquitous human failing, together with service to the public
interest in such an award . . . .” Belford v. McHale Cook & Welch, 648 N.E.2d 1241,
1246 (Ind. Ct. App. 1995), reh’g denied, trans. denied.
The trial court found Tharp had grounds for his belief in the statement he made,
and his conduct was therefore not inconsistent with “mistake of law or fact, honest error
in judgment, overzealousness, mere negligence, or other noniniquitous human failings.”
(App. at 141.) As such, it appears whether summary judgment was appropriate on this
count turns on whether the qualified privilege is available to Tharp. Because we find a
genuine issue of fact as to the availability of the qualified privilege, summary judgment
on the punitive damages count was improper.
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7. Evidentiary Rulings
The trial court struck, apparently as inadmissible hearsay,7 evidence Williams and
Kelsey offered in the form of an in-car video from the police officer that responded to the
scene and testimony by Officer Frolick based on his review of a Papa John’s surveillance
video. As we reverse summary judgment and remand for trial on the ground there was a
genuine issue of fact as to whether Tharp’s statement was privileged, we need not address
the evidentiary rulings.
However, we note we have recognized a distinction on summary judgment
between hearsay offered as evidence and the facts established by the hearsay. See
Schlotman v. Taza Cafe, 868 N.E.2d 518, 521 (Ind. Ct. App. 2007). A non-moving party
need not produce evidence in a form that would be admissible at trial in order to avoid
summary judgment. Id. In the case of a hearsay affidavit, it is the substance of the
affidavit and not the form that controls; evidence need not be in admissible form but it
must be admissible in content. Id. Hearsay evidence may be considered on summary
judgment if the same evidence would be admissible in another form at trial. Id.
CONCLUSION
Williams and Kelsey’s complaint adequately alleged a defamatory statement and
there is a genuine issue of fact as to whether Tharp’s statement was protected by a
7 Papa John’s and Tharp offer an alternative argument the evidence was properly struck because Williams and Kelsey did not lay a proper foundation for the videotape or its transcript. This argument was not raised below and we therefore decline to consider it.
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privilege. We accordingly reverse summary judgment for Tharp and Papa John’s and
remand for trial.
Reversed and remanded.
RILEY, J., and KIRSCH, J., concur.